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ELCDismissedNot stated in the judgment (arising from Nyahururu PMCC No. 116 of 2004; appeal before ELC Nyahururu dismissed 13.02.2019)· [2024] KEELC 803 (KLR)

Olkalou West Farmers Co-operative Society Limited v Kibue & another (Sued as the Legal Representative of the Estate of the Late David Kibue Kinyanjui) (Environment and Land Appeal 14 of 2023) [2024] KEELC 803 (KLR)

Environment and Land Court
15 February 2024
YAY. M. Angima
750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to block eviction, confirming courts won't use injunctions to stop lawful execution of a final judgment.

What this practically means

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Executive summary

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By a notice of motion dated 30.06.2023, the Appellant, invoking Articles 23(3), 40, 48 and 159(2)(d) of the Constitution, Sections 3 and 3A of the Civil Procedure Act, Sections 24, 25 and 26 of the Land Registration Act and Orders 40, 42 and 51 of the Civil Procedure Rules, sought a temporary injunction restraining the Respondents from entering, encroaching, dealing with, erecting structures on or interfering with Title No. Nyandarua/Ol Kalou West/879 pending the hearing and determination of an appeal, together with costs. The Appellant contended it was the absolute owner of the parcel, that the Respondents had wrongfully invaded part of it, and that its appeal had high chances of success and would be rendered nugatory without an injunction. The Respondents, in a joint replying affidavit, opposed the application, contending that the appeal had been heard on merit and dismissed on 13.02.2019; that they lawfully obtained a one-acre portion pursuant to the judgment and decree of the trial court in Nyahururu PMCC No. 116 of 2004 as affirmed on appeal; and that the Appellant had been evicted by court bailiffs in 2023. They urged that the application was incompetent, bad in law and an abuse of the court process. The application was canvassed by written submissions; the Appellant filed none. The court held that the parties' rights had been conclusively determined by the judgment of 13.02.2019, that there was no pending appeal and no legal rights to be protected by an interim injunction, and agreed that an application for an injunction to restrain execution of a lawful decree was incompetent and an abuse of process. The notice of motion was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

Whether a post-judgment temporary injunction pending appeal could issue

Holding

The application was dismissed in its entirety; the court held there was no pending appeal and no legal rights capable of protection by an interim injunction, and that the application was an abuse of the court process.

Reasoning

The Appellant's appeal from Nyahururu PMCC No. 116 of 2004 was heard on merit and dismissed by the ELC on 13.02.2019. Although the Appellant intimated an intention to appeal further to the Court of Appeal, there was no indication the intended appeal was pursued. An application to restrain execution of a lawful decree obtained under a judgment affirmed on appeal is incompetent and an abuse of process, warranting dismissal with costs.

p. 2
02

Whether the Appellant had a prima facie case with a probability of success

Holding

The court found no merit in the claim of ownership justifying an injunction, since the Respondents lawfully obtained a portion of one acre pursuant to the judgment and decree of the trial court affirmed on appeal.

Reasoning

The Respondents' father successfully obtained a judgment against the Appellant in Nyahururu PMCC No. 116 of 2004, which was affirmed on appeal and executed in 2023 through court bailiffs, M/S Tango Auctioneers, who evicted the Appellant from a portion of one acre. The Appellant therefore had no legitimate complaint and no legitimate expectation that an appeal could be rendered nugatory.

p. 2

Legal principles established

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  • An interim injunction cannot issue to restrain the execution of a lawful decree after the parties' rights have been conclusively determined and where no appeal is pending

Court orders

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  1. 1.The Appellant's notice of motion dated 30.06.2023 seeking a temporary injunction was dismissed in its entirety
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 40, 48 & 159(2)(d)
  • Civil Procedure ActSections 3 & 3A
  • Land Registration Act, 2010Sections 24, 25 & 26
  • Civil Procedure Rules, 2010Order 40 Rules 1(a), (b), 3(3), 4(1)(3); Order 42 Rule 6(6); Order 51 Rule 1
On appeal from
Chief Magistrate's Court, Nyahururu
Nyahururu PMCC No. 116 of 2004
Jurisdiction invoked
Articles 23(3), 40, 48 & 159(2)(d) of the Constitution; Sections 3 & 3A of the Civil Procedure Act; Sections 24, 25 & 26 of the Land Registration Act, 2010; Orders 40, 42 Rule 6(6) and 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Olkalou West Farmers Co-operative Society Limited v Kibue & another (Sued as the Legal Representative of the Estate of the Late David Kibue Kinyanjui) (Environment and Land Appeal 14 of 2023) [2024] KEELC 803 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from Nyahururu PMCC No. 116 of 2004; appeal before ELC Nyahururu dismissed 13.02.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/803/eng@2024-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.